Punjab-Haryana High Court
Amandeep Kaur vs State Of Punjab And Others on 10 May, 2024
Neutral Citation No:=2024:PHHC:065638
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
102+208
CWP-33364-2019 (O&M)
Date of Decision: 10.05.2024
1)
Amandeep Kaur
...Petitioner
Versus
State of Punjab and others
...Respondents
CWP-26808-2019 (O&M)
2 )
Neha Kaushal
...Petitioner
Versus
State of Punjab and another
...Respondents
3 ) CWP-27874-2019 (O&M)
Baljeet Singh and others
...Petitioners
Versus
State of Punjab and others
...Respondents
4) CWP-33663-2019 (O&M)
Gurdev Singh
...Petitioner
Versus
State of Punjab and others
...Respondents
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5) CWP-31361-2019 (O&M)
Satnam Singh
...Petitioner
Versus
State of Punjab and another
...Respondents
6 ) CWP-31734-2019 (O&M)
Satnam Singh
...Petitioner
Versus
State of Punjab and another
...Respondents
7 ) CWP-15717-2022 (O&M)
Kalu Ram
...Petitioner
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
****
Present: r. Rishav Sharma, Advocate
M
for the petitioners in CWP-26808, 31361 & 31734-2019 and
CWP-15717-2022
r. Jasbir Mor, Advocate for the petitioners
M
in CWP-27874 & 33663-2019
r. Bhavyadeep Walia, Advocate
M
for the petitioners in CWP-33364-2019
Mr. Manipal Singh Atwal, DAG, Punjab
*****
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AMAN CHAUDHARY J. (Oral)
1. These cases involve similar issues and therefore, are being
disposed of together by this common judgment.
2. The prayer in thepresentpetitionsisforquashingtheimpugned
action of the respondents of withholding the result of the petitioners for
recruitmenttothepostofHeadTeacherandtoselectandappointthemonthe
said post.
3. Learned counsel submitsthatthepetitionerinCWP-33364-2019
had applied against the advertisement dated 08.03.2019 for thepostofHead
Teacher under the General Category and hadsecured158marks,whereafter,
her name figured in the merit list at serial No.65, whereas, the last selected
candidate, scored 156 marks. Her candidature had been rejected only on the
premise that she gained experience as Guest Faculty and from the State of
Haryana.
4. Learnedcounselinconnectedmatters,submitthatcandidatureof
thepetitionershasbeenprimarilyrejectedonthegroundthattheirexperience
gained was as Guest Faculty, that too from the States other than Punjab,
however,theyareinmerit,havingobtainedmarkshigherthanthelastselected
candidate.
5. This Court had, vide interim orders passed in CWP-27874,
33663, 31361 and 31734-2019 directed the respondents to keep one post
vacant for each petitioner therein.
6. Theissuesinvolvedinthesecasesarecoveredonallfoursbythe
judgment by this Court in Jyoti Bala vs. State of Punjab and others,
CWP-14513-2020, decided on 12.03.2024, wherein the experience garnered
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by the petitioner therein as 'Guest Faculty' and from a State, other than
Punjab was ordered to be considered valid in terms of the Rules and the
advertisement by observing thus:
" 4. Having heard the learned counsel on either side, the
questions that arise for consideration would be:
i.Whetheronlytheexperiencethatwasgainedfrom
a service rendered in a government school of State
of Punjab was to be taken into consideration ?
ii. Can by way of a decision taken in a meeting of
theadministrativeauthorities,theStatutoryRulesbe
clarified/ over-ridden/ amended?
iii.Whethertherequiredexperiencehastobewhilst
working on regular basis?
5 . Apropos the main pivot of resistance offered onbehalf
of the State, it would be apposite to refer to the
qualifications and experience required as per the 2018
Rules, in accordance with which, the advertisement was
taken out, which read thus:
" (i) should possess Bachelor's Degree from a
recogniseduniversityorinstitutionwithatleast50%
marks as per guidelines of the University Grants
Commission.
( ii) Should possess two years Elementary Teachers
Training course from a recognized university or
institution or two years Diploma in Elementary
Education (D. El. Ed.) as per guidelines of the
National Council for Teachers Education or
Bachelor Degree in Education (B. Ed) from a
recogniseduniversityorinstitutionasperguidelines
of the University Grants Commission and
( iii) should possess teaching experience of working
asPrimarySchoolTeacherforaminimumperiodof
three years in a Central/State Government School.
However, a prospective candidate must have
acquired such experience after acquiring the
minimum educational and professional
qualifications specified for the posts under these
rules."
6 . Notably from the above, it transpires that the Rule
making authority had in its wisdom sought to enlarge the
scope and ambit of the participationbyopeningthedoors
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o fcandidacytothoseemployedintheCentralGovernment
schools,thatwouldipsofactoimplytothosespreadacross
the nation. Reading in conjunction with the above, the
word 'State' incorporated therewith, would expressis
verbis reveal that the Rule envisaged that the service for
the experience to be taken into consideration of those
desirous of being appointed can be from the government
schools beyond the territory of its own State. Thought
behindit,apparentlywastogiveawidercompetitionbase
and to choose the best.
7 . The submission of the learned State counsel that the
meaning of service in the 'State' as per 2018 Rules, of
which the experience is required, isliabletobeconstrued
as acquired only from the Government schools of the
respondent-State, is on the anvil of the clarificationgiven
by an administrative authority, being in teeth with the
fundamental proposition of service jurisprudence, that
administrative instructions cannot supplant the statutory
rules, as held in State of Haryana vs. Shamsher Jang
Bahadur, (1972) 2 SCC 188, reiterated on numerous
occasionsincludingS.Sivaguruvs.StateofTamilNadu,
2013 (7) SCC 335. The power to issue these is even
otherwise,vestedonlyintheauthoritythatiscompetentto
frame the statutory rules under proviso to Article 309 of
the Constitution of India, in absence of rules. [See Ajay
Kumar Bhuyan vs. State of Orissa, (2003) 1 SCC 707]
8 . Limiting the scope of the advertisement to a particular
State is a way of fostering and strengthening narrow
parochialloyaltiestothatState,orinotherwordsthe'sons
of the soil' policy, which was explained in and cautioned
against by Hon'ble the Supreme Court in the case of Dr.
Pardeep Jain and others vsUnionofIndiaandothers,
(1984)3SCC654.Appointmentstopublicpostsshouldbe
strictly in accordance with Articles 14 and 16 of the
ConstitutionofIndia.Eligibilitycriteriashouldbeuniform
and there cannot be scope of arbitrary selections by
unfettereddiscretionbeingvestedintheauthorities,aswas
held by Hon'ble the Supreme Court whilst approving the
conclusion arrived at by the Division of the High Court.
(See State of Jammu and Kashmir vs. Shaheena
Masarat, (2021) 13 SCC 304).
9 . On a panoramic evaluation, firstly, there can be no
restrictive interpretation as sought to be projected, that
wouldresultintheinfringementoftherightsofcitizensfor
the purpose of appointment; secondly, the professional
qualifications required for the postbythe2018Rules,are
as per guidelines of the NCTE/UGC, that have auniform
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a pplicationacrossboard;thirdly,itisnotacasesetupthat
thepostofateacherinagovernmentschoolintheStateof
Haryana, is not equivalent in terms of duties and
responsibilities in any manner, to that in the
respondent-State; and the above, when coupled with the
usage of the word 'Central' in the Rules/Advertisement,
would necessarily include all those candidates, who work
in schools run under the aegis of theCentralGovernment
anditsinstrumentalities,intheentirecountry,aseligibleto
apply, this Court is impelled to answer the first two
questions against the respondent-State. As a sequitur, the
cancellation of the candidature of the petitioner on the
premise of, she having worked in a government school,
beyondtheterritorialboundariesoftherespondent-State,is
herebydeclaredtobeperverseandillegal,havinginit,no
nexus with the object sought to be achieved.
1 0. Moving ahead, to the third question, of teaching
experience required of working in primary schools, the
word'regular',isconspicuousbyitsabsence,intheRules
ibid.
1 1.Toproceedfurthertodeterminetheaforesaid,itwould
be profitable to refertoDr.RavinderPalKaurvs.State
of Punjab and others, (1979) 2SLR645,whereinithad
beenobservedandheldthat,thereishardlyanydifference
insofarasteachingexperienceisconcernedwhethergained
on ad hoc appointment or on regular, since the Statutory
Rulesdonotconfineittoregularappointment,thusthatof
the petitioner as Assistant Professor Radiology on ad hoc
basis from May 11, 1973toFebruary19,1976,cannotbe
ignored to determine her eligibility for appointment as
Professor in Medical College, Patiala. Further, in
CWP-2246-2008 titled as Rai Singh vs. Kurukshetra
University, Kurukshetra, decided on 18.08.2008, it was
held that appointment on contract basis is also a type of
adhoc service. Even themerefactthatnominalbreaksare
given or lesserpayisgivenorincrementsarenotgranted,
is no groundtotreatthesaidservicedifferently.Denialof
benefit to those working oncontractbasis,cannotbeheld
to be any rational basis, as they stand on samefootingas
employees appointed on adhoc basis.
1 2. This Court in Baljit Kaur vs. State of Punjab,
CWP-421-2008decidedon21.04.2009,observedandheld
that, "...It is now admitted position on record that the
petitioner secured the highest marks on the basis of laid
down criteria in Female B.C. Category. The certificate
issued in favour of the petitioner indicates that the
petitioner had the requisite experience though the
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c ertificate indicates that the petitioner was a part-time
Lecturer. The statutory rule only prescribes seven years
teachingexperience.ItisnotprovidedundertheRulesthat
theexperienceshouldbeasawholetimerorinaparticular
institution.Onlyteachingexperienceisrequiredwhichthe
petitioner had to her credit at the time of making
application for selection/ appointment."
1 3. TheDivisionBenchofthisCourtinD.P.Mehta(Dr.)
vs.P.G.I.anditsGoverningBody,1997(1)RSJ501,had
observed that in ordinary parlance, experience means "an
actual living through something and coming to know it
first hand rather than through hearsay or report".
According to Webster 3rd New International Dictionary,
'experience' means "beingengagedinaparticularactivity;
direct observation of or participation in events,
encountering, undergoing or living through things in
general as take place in the course of time." The post of
Joint Medical Superintendent could be filled up "from
amongst Deputy Medical Superintendents having five
years experience".Sincetheruledidnotpostulatethatthe
incumbent should have worked on the post for five years
on regular basis but only required that he should have an
experience as a Deputy Medical Superintendent, the plea
raised that petitioner is not eligible, having worked on
grant of additional duties of the post, it was held cannot,
thus, be sustained.
1 4. In Sec., Eng. Department, U.T. Adm., Chandigarh
vs. VipinGuptaandanother,CWP-12679-2010decided
on 25.10.2010, the Division Bench noticed that,aperusal
of Rule 6 and Appendix 'B', made it clear that for
becoming eligible for promotion to the post of Executive
Engineer,aSubDivisionalEngineermusthaveexperience
ofworkingforminimumperiodofeightyears.Itwasthus
held that the expression 'working experience' cannot be
construedtomeanthathemusthavegainedtheexperience
while working on a permanent substantive post on which
he has been appointed on regular basis. In other words,
long term regular promotion would not be necessary to
gain experience of working because whether a person
works on a post in his capacity as ad hoc/current duty
chargeholder/temporarilyhisnatureofdutiescontinuesto
be the same which any regularly promoted person would
require to discharge. Reinforcing the above, in Chief
Engineer, UT. vs. Ram Sarup Walia and others,
CWP-77-2012, decided on 06.01.2012, it was observed
that by virtue of the absence of the word 'regular', the
current duty charged is to be treated as qualifying work
experience for the purpose of promotion and held that,
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" ...In our view, 'the working experience' cannot be
construed to mean that he must have gained the regular
experiencewhileworkingonapermanentsubstantivepost
on which he has been appointed on regular basis."
1 5. The irresistible conclusion arrived at is that the term
'Guest faculty' is amisnomer,asanemployeeworkingin
astopgaparrangement,beitasparttime,contractual,guest
etc, are all in effect 'ad hoc'. Theaspecttobeseenisthe
sphere of their duties, responsibilities and the quantumof
work in terms of classes taken and subjects taught,
regarding which evidently, acertificateinthiscase,ofthe
Head Teacher, Govt. Primary School, Budhi Medi (Sirsa)
had been produced, which remained unrefuted, stating
therein that as a J.B.T. Teacher, the subjects of regular
teacher and guest teacher remained same.
1 6. In a comprehensive yet concise consideration of the
abounding judicial pronouncements, that this Court has
implored itself with,whicharefoundtobeintrinsicallyin
favouroftheproposition,inviewthereof,thesecondplank
of argument, as sought to be canvassed by the State can
equallynotbecountenanced.Asafalloutoftheabove,the
right of the petitioner has been wrongly eclipsed, on her
being a guest faculty.
1 7. Though there is no dispute as regards the legal
propositionlaiddowninthejudgementrelieduponbythe
learned State Counsel, but its ratio does not apply to the
facts of the present case, inasmuch as, it is not the plea
taken that employees serving in the respondent-State
possess special skills and knowledge by virtue of having
been trained under specific State run schemes, aswasthe
premise ofthesaidcase,nordoanyofthepeculiaritiesas
referred to therein, exist.
1 8. Conspectus analysis of the interwoven issues, renders
the action of the respondent-State, on both counts, to be
palpably arbitrary and violative of Articles 14 and 16 of
the Constitution. As a corollary, there being left no
impediment in consideration of the petitioner, the
respondentsaredirectedtoappointher,subjecttothemerit
position in the selection. She will be entitled to notional
seniority, pay fixation etc, but not actual monetary
benefits."
7. LearnedStatecounseldespitehisbestefforts,hasbeenunableto
controvert the factual position and draw out any distinctive aspects in the
aforementioned judgment or cite any contrarylaw.However,hesubmitsthat
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the State be granted liberty to verify the appointments of the petitioners,
whereupon they gained experience and the certificates.
8. In view of the aforesaid, the present petitions are disposed of
directing respondents to consider and appoint the petitioners,subjecttotheir
merit positions in selection and verification of their appointment/experience
certificates,withinaperiodoftwomonths.Incaseofissuanceofappointment
letters, it is clarified that theyshallbeentitledtoonlynotionalseniority,pay
fixation etc, but not actual monetary benefits.
9. Pending applications, if any, also stand disposed of.
10. A photocopy of this order be placed on the file of connected
cases.
(AMAN CHAUDHARY)
JUDGE
10.05.2024
Hemant
hether speaking/reasoned
W : es / No
Y
Whether reportable : Yes / No
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